Surrogacy: Legality

When a child is born to childless parents through a surrogate or substitute mother, this procedure is called surrogacy. This notion of surrogacy goes back to Biblical times when Sarah, wife of Abraham, was unable to give birth to a child; she gave her handmaid, Hagar, to Abraham so that they can have a child. However, the outcome of this “surrogacy” was unpleasant, as the spouse became jealous and also the maid refused to give up the child.

Similar cases are very common in cases of surrogacy wherein the mother develops an emotional bond with the child to be born and refuses to give him up after birth. Today, when surrogacy has become a legal concern and also a hope for many couples, it is highly recommended to take care of the legal aspect and make a pact with the surrogate mother in order to protect the rights of the child, surrogate mother and intended parents.

Laws of Surrogacy

The legality of surrogacy is a sensitive issue, involving emotions, relationships and the rights. Legal rights are an important aspect which makes the future of the child. There are cases where the surrogate backs out at the last moment, stating reasons of being emotionally attached to the child, or the childless couple backs out due to issues of fears against surrogacy or personal relations being hampered.

The legal aspects surrounding the procedure differ from country to country, according to ways of thinking and morals. In some places, the woman who gives birth is the child’s legal mother and in other jurisdictions, the intended parents are considered to hold the legal authority of the child.

Protecting the Rights

To avoid an unpleasant ending to a surrogacy, the surrogate mother and the intended parents sign a pact or contract over the child’s legal rights, to protect his rights and other legal concerns. This contract will state the rights and interests of both the parties. It is further suggested that both the parties should consult their respective lawyers. Once the contract is signed, the privacy of the surrogate as well as intended parents is given due importance.

While signing the contract, both parties must understand and acknowledge the terms and conditions. Inclusion of issues pertaining to case of rejection by any party due to any reason must be stated. In case the intended parents reject the child after being born and the surrogate mother also refuses to take the responsibility, then who should take care of the child’s future? Such issues are important.

The contract must also include the benefit of termination of the contract and its outcome. In many cases when the contract is broken, obtaining the legal rights becomes difficult; hence, terminating the contract is an easy option out for both the parties.

Checklist with Surrogacy

Before signing the contract, issues concerning the child’s care and nurturing by the intended couple, and the surrogate’s ability to control her reproductive freedom and her pregnancy must be given importance. Both the parties must be willing to undergo a medical examination. Counseling sessions for both the parties is required to avoid the breaking of clauses in future, and the details of the birth certificate must be mentioned and verified with the help of respective attorneys.